Archive for the ‘SLAPP / anti-SLAPP’ Category

Recently I posted about Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012). It dealt a strong victory for free speech rights, but in my opinion, the California appellate court turned something of a blind eye to the issue of the relative legitimacy of internet postings.

The court reached its decision largely on the basis that the online statements at issue were incapable of being defamatory because they were merely nonactionable opinions. In doing so, however, I think the courts are overlooking the reality that many users of such internet forums actually treat postings they read as fact.

Nicole Mateo and Chaker had a contentious custody battle over their child.

Wendy Mateo posted degrading comments about Chaker in online forums.

Chaker sued for defamation.

Wendy Mateo filed an anti-SLAPP suit and won.

The appellate court affirmed that she was merely exercising her First Amendment free speech rights in the matter.

The Chaker court points out that “the context in which the statements are made” is an extremely important aspect of the “totality of the circumstances” examination of whether a statement is actionable. “This contextual analysis demands that the courts look at the nature and full content of the audience to whom the publication was directed.”

The two online sites where Wendy Mateo posted her comments were:

Ripoff Report, which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”

A social networking site into which Chaker had inserted himself by posting a professional profile.

In arriving at its findings, the court acknowledges and openly joins a trend I see as sad and disturbing: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”

By giving credence to the idea that internet forums generally yield nonactionable opinions, I think the courts are overlooking the reality that many users of such forums actually treat postings they read as fact.

It is true that, around the watercooler, someone making a claim he knows to be unsupported by fact, will add, “I saw it on the internet, so it must be true,” as a sarcastic verbal signal that he knows his point is a weak one – even if he is not willing to yield it.

But the thing is, for many people, “I saw it on the internet, so it must be true” is not a sarcastic expression, but rather words to live by.

Does that make such a user legally “unreasonable”? That appears to be the judgment in recent cases. But if courts truly are to look at the “nature … of the audience to whom the publication was directed,” perhaps a better way to articulate the standard is “reasonable when viewed from the perspective of a typical user of an internet forum.”

To be sure, the Chaker court does not actually use the term “reasonable person” nor even the word “reasonable” in its roughly 10-page opinion. But I believe what it’s saying, in joining the internet-forum-as-opinion trend, is that a reasonable person would not go to those sites expecting facts.

Internet forums admittedly are often places for “outrageous claims” where some (the Chaker court says “most”) “visitors are completely aware of the unreliable nature of these posts.” And that seems to tilt the needle toward unactionable opinion.

But if a goodly number of those visitors treats those same claims as hard, verified (or at least verifiable) fact, doesn’t that tilt the needle into the realm of actionable statement of fact?

A California appellate court has affirmed a lower court’s ruling granting a woman’s anti-SLAPP motion against her daughter’s ex-husband regarding online postings the woman made about him.

The genesis of Darren Chaker’s lawsuit against Nicole Mateo and her mother, Wendy, was apparently a contentious custody battle in Texas courts regarding the former couple’s child. This battle appears to have helped prompt Wendy Mateo’s online comments, which in turn led to Chaker’s defamation suit.

In granting Wendy Mateo’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) motion to strike the defamation suit, the appellate court affirmed that she was merely exercising her First Amendment right to free speech in the matter.

The court found that the postings, while not on sites that were truly interactive, were at least on the internet, which functions as a worldwide bulletin board (read: public forum):

Something called “Ripoff Report,” which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”

A social networking site into which Chaker had inserted himself by posting a professional profile (the opinion styles him as working in “forensics”).

As such, the court found that the comments Wendy Mateo posted were of public interest, regarding each forum.

But the court went on to conclude that the statements were nonactionable opinions (or, in other words, free speech) rather than actionable statements of fact by considering the statements’ contexts – internet forums – as likely places for opinions rather than facts, and not so much their content: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”

In fact, in analogizing to a prior case it handled in which a defendant had posted nine claims against a bank and its CEO in an expletive-laced rant, the court said:

In finding the defendant’s statements were nonactionable opinions, the [prior] court relied in part on the fact they were posted on the Internet Craigslist “Rants and Raves” Web site and lacked “ ‘the formality and polish typically found in documents in which a reader would expect to find facts.’” Summit Bank v. Rogers, 206 Cal.App.4th 669, 696–701, 142 Cal.Rptr.3d 40 (2012).

(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. …

“ ‘(e) As used in this section, “act in furtherance of a person’s right of petition or free speech … in connection with a public issue” includes: … (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. …

Note that the statute sets up a two-part test. In plain terms, first, the defendant must show that the statement that the plaintiff complains of qualifies as free speech in connection with a public issue.

If the defendant succeeds with Step One, the case is not necessarily resolved: The plaintiff must then show that he at least has a reasonable chance of prevailing if the case goes to trial, in order for the case to proceed from there.

Here, the court found that Wendy Mateo’s online postings fit the criteria for California’s anti-SLAPP statute.

Further, the court found that the postings were in online forums where people do not expect to read factual information.

An anti-SLAPP motion is a special kind of procedural device that allows the early summary dismissal of a lawsuit that is aimed at shutting down someone’s exercise of their First Amendment rights.

My bet is that Smith will win the anti-SLAPP motion, thus ending the lawsuit.

The best quick rundown of the fact’s is Smith’s own statement on her blog:

I began this blog in Feb. 2012 after noticing that the Google reviews I had posted of my former church were being removed. Days after the commencement of this blog, I received a legal summons suing me and three others for defamation to the tune of $500,000. The story of spiritual abuse needs to be told. People are being hurt emotionally and spiritually by pastors who use bully tactics and we need a place to learn, to talk freely, and to heal. I will not be silenced.

For me, the best evidece of Pastor Charles O’Neal’s sky-high creepster-factor is his own words, quoted by Smith on the blog, as he rails against her in a weird rant with frequent crazy-person use of ALL CAPS.

Nicely put is Smith’s February 25, 2012 response:

I wouldn’t waste my time on defamation – what is there to gain in that? I will, however, sacrifice my time and energy in speaking the truth when there is abuse of power going on and lives are at risk.

This happened back in October, but you’re just now finding out about it on Blog Law Blog, where, with paywall-less blogging, you get what you pay for.

Darm sued for defamation, but then dismissed the suit. It looks like Darm just bailed after he realized that all that was likely to happen was that he would lose and get stuck with legal fees for both sides, thanks to Oregon’s anti-SLAPP law. The complained-of tweet and blog post are staying up.

The suit appears to have arisen out of this blog post, in which Craig embedded a YouTube video, since removed, of an uploaded Dr. Darm television commercial. Underneath, Craig wrote:

Seen that around? Sure you have. If you watch television in Portland Dr Darm is ubiquitous. Especially on those local channels that show endless reruns of Two and a Half Men. He wants to fix you up good and spend thousands on cosmetic procedures that will get funneled straight into his Lake Oswego home.

What he should have added with his Results May Vary disclaimer is Dr. Darm Handed Over His Medical License Due To Disciplinary Action. …

EFFECTIVE 10/18/01 RECEIVED A LETTER OF REPRIMAND FROM OREGON, REQUIRED TO HAVE A CHAPERONE WHEN EXAMINING FEMALE ADULTS, AND ADDITIONAL CONTINUING MEDICAL EDUCATION COURSES. EFFECTIVE 01/08/09 STIPULATED ORDER OF 10/18/01 IS TERMINATED.
That’s right, he was censured by the state because he was examining female patients without a chaperone. If that’s not bad enough? Apparently needed just a teensy bit more education about how to respect the boundaries of his patients.

Oh and California just decided that he shouldn’t be licensed at all. If he tries to get licensed in California, he has to reapply.

And maybe you’re thinking, “so what if he examined a female patient without a chaperone? How is that a big deal.” You should really read the judgement which says:

“Licensee examined Patient A on August 3, 2000 and September 21, 2000 to evaluate the treatment results. Patient A repeatedly expressed concern about some “spider” veins on her legs, but that she could not pay for additional treatment. Licensee informed Patient A that he would provide her with free treatment at his clinic closing time. On or about November 16, 2000 at about 9:30 PM, Licensee used a laser to treat Patient A’s condition on her legs. At the conclusion of the treatment, as she was reclined on her back, Licensee leaned over Patient A and made intimate physical contact with her and inferred that would be his payment.”

That’s right, he tried to get a woman to sleep with him in exchange for cosmetic surgery.
I’m don’t think Results May Vary is quite enough to warn people off being treated by Dr. Darm.

Assuming the quotes are accurate, how could this be defamatory?

A report on the settlement by Alex Zielinski in the alternative weekly newspaper, the Portland Mercury, implies it was this:

Craig … didn’t note that Darm’s license is now renewed in Oregon.

So what? If the reasonable implication of Craig’s post was that Darm wasn’t licensed in Oregon, then, true, that could be actionable. But when I read Craig’s post, I certainly do not come away with the idea that Darm is unlicensed in Oregon. Quite the opposite. Craig’s post seems to imply that he still is licensed in Oregon.

A better candidate for the allegedly actionable content is this:

That’s right, he tried to get a woman to sleep with him in exchange for cosmetic surgery.

Indeed, the quoted material Craig uses does not support the literal truth of that statement. Making “intimate physical contact” with a patient and “inferr[ing] that would be his payment” does not literally mean that Darm tried to get the patient to sleep with him. But American defamation law is tolerant of this kind of poetic license. An instructive case on this point is another litigation I blogged about out of the District of Oregon in 2011: Obsidian Finance Group v. Cox. (What is up with the onslaught of Oregon defamation-by-blog cases?) According to heritage Portland newspaper The Oregonian the papers filed by Craig’s attrorney, Linda Williams, argued that “the gist” of the blog post was true and that the statements, in context, were opinions based on verifiable facts.

An anti-SLAPP law is a tweak to court procedure that empowers defendants, who have been sued because of something they said about a matter of public interest, to quickly get rid of frivolous lawsuits filed against them. Anti-SLAPP short circuits the usual lengthy and expensive litigation process required to beat back an unmeritorious complaint.

The idea is to prevent the courts from being used as a way to gag critics of the well-lawyered. Thus, anti-SLAPP laws are potentially very important for bloggers.

The Dallas Morning News has written an editorial (here) supporting the efforts of U.S. Representative Charles Gonzalez (Democrat from San Antonio), who is trying get a federal anti-SLAPP law passed.

The Dallas Morning News’s reason? To protect bloggers:

Blog participation is exploding, and consumers increasingly are using their keyboards to vent frustrations over being cheated or mistreated by companies. Once posted, those complaints can fall under state defamation laws. In other cases, lawyers for a company criticized on the Internet often sue by claiming “tortious interference” – that the blogger is hindering a company’s right to conduct business.